LABOR LAW: Owners of one- and two-family homes who do not supervise or direct construction work typically are exempt from New York's Labor Law. The First Department recently expanded that protection. The Court applied a "site and purpose test" that essentially analyzes the homeowner's intentions at the time of the acident. In this case, plaintiff was injured at a "two-family house" that also had a basement apartment (for a total of three families, two of whom were related). The appellate decision reversed the trial Court's Order denying judgment to defendant and said there was no basis to conclude that this was a three-family house (
Diaz vs. Bocheciamp).
PRACTICE TIP: Defense attorneys and adjusters should take precautions when dealing with residential-home accidents to determine the layouts of the houses before arriving at the conclusion that the one- and two-family home exclusion does not apply. The mere fact that more than two families lived in the structure is not dispositive on the issue.
LABOR LAW, PART II: Plaintiff fell from a cell phone tower after he had finished inspecting it for a malfunction. He had not performed any work to the tower. Instead, he was in the process of descending the tower when he fell and brought a Labor Law claim against the cell phone tower owner. Defendant moved for summary judgment on two points. First, it argued that plaintiff was merely inspecting the tower and not performing any actual work to it at the time of his accident. Second, the owner also argued that it had provided appropriate safety devices to plaintiff.
The Fourth Department held that an injured party's inspection of a malfunction is a protected activity under the Labor Law, and should not be considered routine maintenance (which is not covered). The Court also held that there was a question of fact as to whether plaintiff was provided with appropriate safety devices because each side submitted expert affidavits on the issue.
Please note that two justices offered dissenting opinions on the safety device issue. This means that plaintiff has the right to further appeal this decision to the Court of Appeals (
Cullen vs. AT&T, Inc., et al.).
NO-FAULT REIMBURSEMENT: New York's highest court held that Aetna, the health insurer that was (mistakenly) paying plaintiff's medical bills, was
not entitled to reimbursement from Hanover, plaintiff's No-Fault insurance company, for payments made for plaintiff's medical expenses related to the accident. The Court reasoned that these types of "reimbursements" were not contemplated by the "No Fault" statutory law and regulatory scheme. The Court also found that here was no privity in contract between Aetna and Hanover, further supporting the decision to deny this recovery to Aetna. In a concurring opinion, one of the Justices further explained that this is not a true issue of "subrogation" (where Aetna stepped into the shoes of plaintiff to recover on plaintiff's behalf) because the damages being recovered came about as a result of improper billing directed to Aetna. As such, Aetna was still able to go to each of the medical providers which improperly billed Aetna and get reimbursement from them (
Aetna Health Plans vs. Hanover Ins. Co.).
PRACTICE TIP: This is a huge case in the world of No-Fault payments. Health insurance companies (such as Aetna here) must make sure that a No-Fault carrier is not truly responsible for payment of medical expenses because they are not able to sue for reimbursement.
LABOR LAW, PART III: The Third Department upheld the decision to grant summary judgment to the property owner in this case. There was no dispute that the plaintiff was subjected to an elevation-related risk in the course of his work. Plaintiff was provided with a ladder to protect against that risk by defendant. Defendant's expert engineer opined that the ladder was in compliance with all applicable safety standards and that the sole cause of the plaintiff's fall was his failure to descend the ladder with due care. Plaintiff provided no expert proof to call the engineer's findings into question. Here, plaintiff's unwitnessed fall occurred when he was climbing down the ladder empty handed and misjudged the location of a step that had one rung instead of two. The other steps had two rungs because plaintiff had not fully extended the ladder (
Van Wormer vs. Watkins Glen Props., LLC).
LATE NOTICE OF CLAIM: The Fourth Department reversed the trial Court's decision to allow a plaintiff to file a late Notice of Claim against a school district. (A Notice of Claim is generally a prerequisite to filing a lawsuit against a government entity.) Although the infant-plaintiff's mother claimed she did not know how severe her daughter's injury was so as to excuse the delay, she did not attach any medical records to the motion seeking permission to serve the late Notice of Claim. Further, plaintiff failed to show that the school district had knowledge of all of the essential facts about the claim and that defendant would be prejudiced if plaintiff were allowed to file the Notice of Claim because it would not be able to investigate the loss (
Diez vs. Lewiston-Porter Central School District).
NOTICE OF CLAIM, PART II: Plaintiff entered into a written agreement with defendant to provide an easement over his property in connection with a municipal sewer project. In 2012, plaintiff's property was damaged during the course of the project. On October 10, 2013, plaintiff sent a pro se letter to defendant regarding his intention to file suit, and then filed a small claims action. In City Court, the action was dismissed. Plaintiff appealed to the Third Department, which reversed because the notice of claim provisions of General Municipal Law and the City Charter apply only to actions sounding in tort, not to those premised upon breach of contract. Here, plaintiff's action was premised upon defendant's failure to comply with the easement agreement and should not have been dismissed (
Strauss vs. City of Glens Falls).
MORE MUNICIPAL LIABILITY: Plaintiff was injured in a motor vehicle accident and sued the County of Erie for failing to maintain the roadway. Defendant moved for summary judgment and argued that plaintiff caused his own accident by failing to bring his vehicle to a stop and yield the right-of-way. The Fourth Department, in affirming the denial of summary judgment to the County of Erie, said: "[t]he negligence of a plaintiff in violating the rules of the road will not relieve a municipality of liability for its negligence in the design, construction, or maintenance of a highway" (
Dodge vs. County of Erie).
PRACTICE TIP: Just because a plaintiff may have partially caused his own accident does not relieve a municipal defendant from fulfilling its duty to maintain the roadway.
"SEROUS INJURY" THRESHOLD: An appellate court reversed denial of summary judgment on the issue of 90/180 day threshold when defendant submitted proof that plaintiff never missed a full day of work following his motor vehicle accident. As such, the Court reasoned, plaintiff cannot show that he was unable to perform his usual and customary daily activities (
Pastuszynski vs. LoFaso).
NEW TRIAL BASED ON CROSS-EXAMINATION: The Second Department recently held that a plaintiff was entitled to a new trial where the defense was permitted to question plaintiff's sister on her criminal history and prior bad acts. Plaintiff, a nonverbal individual with mental and physical disabilities, brought a personal injury case with her sister acting as her both her guardian
ad litem and a fact witness. The Second Department found that the extensive questioning of plaintiff's sister's prior convictions and the underlying factual details of the crimes was "plainly prejudicial and designed to deprive the plaintiffs of their right to a fair trial" (
Morency vs. Horizon Transportation Services, Inc
.).
PRIMARY ASSUMPTION OF THE RISK: The doctrine of primary assumption of risk was applied in a case involving a plaintiff struck in the head by an errant baseball during his high school practice. The ball came from the hand of plaintiff's coach, who was wearing fleece winter gloves. Plaintiff acknowledged the danger of errant baseballs and had been previously struck while playing baseball. The Second Department affirmed summary judgment in favor of defendants, finding that plaintiff failed to demonstrate how the coach's use of fleece gloves subjected plaintiff to an unreasonable or unappreciated risk of the game (
Kaminer vs. Jericho Union Free Sch. Dist.).
